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Kerala High Court

Association For Environment ... vs State Of Kerala on 11 October, 2001

Author: B Srikrishna

Bench: B Srikrishna, M Ramachandran

JUDGMENT
B.N. Srikrishna, C.J.

1. O.P. No. 16272 of 2000 was brought as a public interest litigation by the petitioner
which is an association interested in protection of the environmental ecology of the
country, and of the State of Kerala, in particular. The basic grievance made in the
petition pertains to indiscriminate depredation of natural resources in that the sand
from Periyar river bed and the river banks were being indiscriminately mined, causing
tremendous ecological disturbances and depletion of natural resources. It is the case
of the petitioners that there is no system of control over the excavation of sand from
the river banks and the river beds. It is also the case of the petitioners that, despite
repeated appeals made to the District Collector and the State Government, no action
was being taken, resulting in a serious situation as the authorities of the State Government
were not properly implementing their own directives and orders issued by Circulars
previously issued.

2. These petitions were with regard to Panchayats and their depredatory activities
along the banks of the river Periyar. The story with regard to other Panchayats
situated on the banks of other rivers is not much different. This State, popularly called
"God's own country", has been endowed bountifully by nature; that men shall not
cause wasteful depletion thereof, should be the objective of every right thinking citizen,
and this Court.

3. Certain chronology of events is necessary to be noticed in order to appreciate
the final order we propose to pass for disposal of these petitions.

29.6.1998 - State Government took control of nine rivers from the Panchayats
under Sub-section 82(1) of the Kerala Panchayat Act, 1960.

5.1.1998 - Circular No. 66221/P1/97/Revenue, making restrictions on the basis
of the export committee report on sand mining in Bharatha Puzha (18 conditions were
imposed, which was subsequently made applicable to all other rivers)
4.4.1998 - District Collector has constituted an expert committee including 21
Panchayat Presidents, instead of experts (P4)
8.11.1998 - Reports in newspapers stating that Bridges are in dangerous condition
due to excessive sand mining and water pups. (Exhibits. P8 & 9)
4.12.1998 - Writ Petition challenging the said constitution was disposed of with
a direction including experts. (Ext. P5)
21.4.1999 - As directed in CCC. 117 of 2001 against that District Collector,
Ernakulam has taken a decision to ban poll scoop and to take strict action against
violators.

25.10.2000 - Ordered that if it is found that sand mining has been done
unauthorisedly, the sand thus mined will be taken back to the place from where it is
unauthorisedly mined and put back into the river.

20.12.2000 - Direction issued to District Collector, Ernakulam to file a report
stating the quantity of the sand mined during the previous year. Till such time sand
mining from Periyar River is banned.

9.1.2001 - Report by District Collector, Ernakulam stating that Rs. 5,52,05,309/- is
due by the Panchayats on the banks of Periyar River towards River Management Fund.

29.1.2001 - Report by District Collector, Ernakulam stating that Rs. 2,04,54,164/- is
due towards River Management Fund and Rs. 6,78,78,462/- towards Royalty.

24.1.2001 - Direction to Kavalangad, Eloor and Varapuzha Grama Panchayat
Secretaries to be present in person on contempt.

24.1.2001 - Direction issued to District Collector not to use or divert River
Management Fund.

16.2.2001 - Direction issued to the Centre for Earth Science Studies (CESS) to
make an urgent inspection of the Periyar River and to give a report.

March - 2001 - Interim report submitted by the CESS stated that bridges are in
dangerous condition, and indiscriminate scooping of sands from river channel is not
only a threat to the stability of bridges, river banks and religiously/culturally significant
sand bodies, but also aggravates the rate of lowering of river beds and also drastic
changes in river bed configuration which in turn lead to salt water ingression farther
inland.

15.3.2001 - Interim order by the High Court directing the District Collector to
file a statement showing the Kadavus that would come within the banned area of
Periyar River namely 1 km (one) upstream and down stream of bridges, list of Kadavus
that would not come within the prohibited distance, the quantity of sand permitted.

23.3.2001 - Statement by District Collector, Ernakulam stating the Kadavus
showing the kadavus which comes within the above distance of 1 km.

23.3.2001 - Order by the High Court prohibiting ban on kadavus which falls
within the prohibited distance from the bridges.

26.3.2001 - Interim order by the High Court, imposing 11 conditions on the basis
of the report of the expert committee. The court further directed the State to impose
these conditions on all rivers. The Court also directed the Government to file an
affidavit stating the quantity of sand taken outside the State.

20.5.2001 - Govt. issues Circular No. 40368/C2/2HOM/LSGD, dated 25.5.2001
incorporating the above conditions imposed by the Court. But there is statement that
this will be additional conditions.

15.6.2001 - Report filed by the District Collector stating that Karamasamithis'
have convened in all Taluks and they will be made active.

21.6.2001 - Direction to the District Collector that before the sand mining ban is
removed after 31st September, no sand mining shall be allowed unless and until the
District Collector and the Karmasamithis are constituted and functional in each
Panchayat.

23.7.2001 - Affidavit as directed by the Court filed, stating that the quantity of
sand transported outside Kerala is 11,84,456.66 M. Tonne of sand per annum from
three districts, Ernakulam, Malappuram and Palakkad Districts.

26.9.2001 - Last date for the filing of report by CESS.

1.10.2001 - Sand mining holiday is to be lifted, if conditions are to be satisfied.

4. From the history of events narrated, it is apparent that, as early as in the year
1993, the State Government was aware and alive to the fact that removal of sand
from the rivers in the State and the licensing thereof, which were handled by the
Panchayats through which the rivers were handled by the Panchayats through which
the rivers concerned flow, had deteriorated. There was indiscriminate and unregulated
removal of sand from the major rivers causing large scale land sliding and loss of
property. There was also disturbance to the biophysical environment system of the
river beds in different degrees. Several directions made by this Court in this regard on
public interest litigation by the public spirited citizens were not taken into account by
the State Government. Repeated directions of this Court resulted in the Government
in exercise of its powers under Section 82(1) of the Kerala Panchayats Act, 1960 to exclude
the nine rivers, namely Bharathapuzha, Periyar, Chaliyar, Pamba, Kallada,
Vamanpuram, Chandragiri, Karamana and Meenachil from vesting in the Panchayats
and taking them over.

5. It is unfortunate that despite, passing such an order in 1993, no further steps
were promptly taken to deal with the issue which was a burning one even then. It is
only on 5.1.1998 that the Government gave directions in its Circular prohibiting sand
mining to the following effect:

1) Pass is to be issued to the sand which is to be transported to other States. It should
not be allowed to transport sand to other States without pass. Sales Tax is to be levied
on inter state trade.

2) The District Collectors have to appoint an expert committee so as to fix the quantity
of the sand could be mind and the quantity of sand that could be mined from the
"Kadavus", in each year, in advance. Only after the decision of the Collector on the
said recommendations that the Municipalities and Grama Panchayat would be allowed
to remove sand.

3) The above expert committee to evaluate the quantity of sand twice a year and to report
on long term measures on this matter.

4) Check posts have to be set up in each "Kadavus" and a watchman is to be appointed
at the expense of the Panchayat. For this no additional post would be allowed. The
Tahsildars should give identity cards.

5) To the existing workers indulging in sand mining in co-operation with the local
administrations, identity cards shall be issued by the Tahsildars. The entry of new
workers in this field should not be allowed.

6) The practice of auctioning of sand should be completely stopped and the Panchayat/Municipality
should take steps to collect and sell sand evaluating load, vehicle and
quality of the sand.

7) The Collectors of Palakkad, Thrissur and Malappuram Districts should meet and
decide the rate of price of the sand. This is to be done prior to the beginning of the
season. The convenor of this meeting would be Collector of Palakkad District. The
remaining 50% amount after giving the wages of the employees from the price of sand
is to be credited to the Fund of the Local Administration. The other 50% of the amount
is to be deposited in the "River Management Fund" under the control of the Collector.
The Fund is to be utilised for the protection of Bharathapuzha and other allied
activities. Special and detailed orders have to be issued in this regard.

8) The Tahsildars should set up Task Force consisting of local voluntary associations
for the purpose of making sure that sand is collected only in accordance with the
conditions and guidelines issued by the authorities. The Collectors should make sure
that the Task force have been set up much before the opening of the season. The Grama
Sabhas as should take part in these activities.

9) Sand mining prohibited from 1st July to 30th September every year.

10) CESS and CWRDMM should conduct a study on the quantity of sand in the region
between Chamravattom and Thirunavaya in Bharathapuzha and the quantity of sand
that could be removed and the places where salt water is instructed, etc. and report
to the Government within 4 months.

11) Sand could be removed only at a distance of 500 meters from the bridges and irrigation
projects. The sand mining should be done in accordance with the guidelines and
conditions issued by the Government. The Panchayat/Revenue Authorities must
ensure that no unauthorised mining is done.

12) Land filling should not be allowed using sand from the river. The Panchayats/Grama
Sabhas should conduct awareness programmes.

13) The wastes from the septic tanks shall not be allowed to be flown into the river. The
Local Administrations should take measures to see that no wastes are dumped into
the streams leading to the river.

14) All authorised possessions should be prohibited and all such persons in possession
should be evicted.

15) The Collectors should appoint Survey Staff to demarcate the boundaries of the river
within a specified time.

16) The existing River Management Committee should work effectively. The District
Collectors should specially attend this matter.

17) As the availability of waste in the river is very important, the Forest Department should
attend to the afforestation programme at the originating place of the river.

18) The irrigation department should as part of Panchayat development make programme
projects for making small dams that would prevent the wastage of excessive flow of
water into the sea.

6. These directives came about, not because of any serious application of mind
on the part of the State Government, but because of the interim orders made by this
Court in O.P. No. 15971/1997 on 12.9.1997 and 24.10.1997.

7. When it was found that the above directions, though salutary, were not being
strictly implemented the petitioner approached this Court by O.P. No. 16272 of 2000,
complaining that the administration and the Panchayats had failed in enforcing the
restrictions imposed by the Circular dated 5.1.1998. At this stage, after hearing several
defaulters who were affected, and after appointing and getting reports of expert
committees known as Centre for Earth's Science Studies (CESS) and Centre for Water
Resources Development and Management (CWRDM), this Court made a detailed
order on 26.3.2001, some of which pertained to the maximum quantity of sand permitted
to be excavated from different kadavus situated in different Panchayats. Paragraph 2
gave a detailed plan of action to be followed and also noticed that there were a number
of Panchayats which were defaulters in making contributions to the River Management
Fund constituted for regeneration of natural resources along riparian beds. In paragraph
7 of this order, this Court directed the State Government to impose conditions mentioned
in this order in respect of sand mining in all the rivers in Kerala in addition to the
specific directions given by the Court in the specific orders.

8. On 25.5.2001 the Government of Kerala issued a circular containing the
following directions:

"1) The Panchayats shall directly carry on the sand mining. It shall not auction that right
in favour of contractors.

2) No people scooping or any mechanised method is permitted at any of the Kadavus.

3) The sand mining operation shall be done only during day time that too between 8 A.M.
to 4 P.M.

4) No vehicle shall be brought to the river bed for the purpose of loading sand.

5) Vehicles shall be parked at a minimum distance of 25 meters from the river bank. In order
to ensure that no vehicle is brought to the Kadavus/river bank the Panchayats shall
erect concrete pillars at the Kadavus on the banks of the river so that no vehicle can
be taken to the bank of the river except two wheelers.

6) No sand mining shall be done within 10 meters from the river bank.

7) The passes shall be issued by the Geology Department through an authorised officer.

These printed passes could be obtained by the Panchayats on payment of royalty in
advance for a period of one month. The passes shall contain signature of the
authorised officer of the Geology Department and also its seal and shall be countersigned
by the Secretary of the Panchayat concerned.

8) The Panchayat shall also pay in advance 20% of the value of the sand covered by the
pass issued for one month towards River Management Fund, in advance, to the
District Collector. On receipt of the cheque for the above amount, the District Collector
or an officer authorised by him shall countersign the passes. Before the 10th of every
succeeding month, the accounts shall be settled by the Panchayats with the District
Collector and the balance amount towards River Management Fund shall be paid. No
passes without undergoing the formalities referred above shall be permitted to be used
for mining or transporting sand.

9) The Secretary of the Panchayats shall see that all the columns in the passes are filled
up properly.

10) The Panchayats shall post an employee at each Kadavus who will make an endorsement
as to the time at which the vehicle leaves the Kadavus with a load of sand and the time
required for the vehicle to reach its destination. To have a watch over this arrangement
and to see that the representative of the Panchayats is meticulously following the
above direction, after the journey is over, the used form shall be immediately returned
to the Panchayats. In any case, the same vehicle shall not be given a fresh pass without
surrendering the pass used by it for the prior trip. All the other conditions imposed
by the Government from time to time shall be binding on the Panchayat in the matter
of mining and transporting of sand."

9. There is, however, a sting in the tail. Instead of complying with the directions
of this Court as contained in the order dated 26.3.2001, this circular ends by saying,
"these conditions should also be imposed in the case of rivers under the control of
Municipalities/Corporations of State". What was directed by this Court was that
the conditions imposed in its order shall be imposed in respect of sand mining in all the
rivers in Kerala. What has been done is something divergent. When the learned
Additional Advocate General's attention was specifically drawn to this lapse, he stated
that, though not happily worded, the circular really means that and it imposes the
conditions suggested in the interim order of this Court to sand mining in all the rivers in
Kerala.

10. At this stage, when these Original Petitions came up for final hearing, we
learned from the learned Additional Advocate General that the State of Kerala is
considering bringing forward a comprehensive legislation to give ample powers to the
State Government to make detailed rules and regulations which would carry forward
the object projected in the original petitions and the desire expressed by this court
through its interim orders from time to time. We are also of the view that in a matter
like this a comprehensive legislation is the only remedy as the court cannot make
interim orders continuously and supervise the situation, though for the lapse on the
part of the executive, the court has to step in from time to time to see that the situation
did not go out of control. We are happy that the State Government is forward thinking
and desires to bring forward a comprehensive legislation on the subject.

11. In view of the fact that there is an impending legislation on the subject, we
are of the view that an order on the lines of the existing interim orders would be
sufficient to take care of the situation in the interregnum from today and the date on
which the legislation becomes effective. With this in view, we heard several of the
counsel who appeared for the intervenor Panchayats, contractors, employees employed
on sand mining and construction works. In our judgment, every restriction of
development is a reasonable restriction on somebody's right to life, right to trade or
business or occupation. As long as the restriction is not disproportionate and more
than necessary, and within reasonable limits, such restriction is a price one has to pay
for being a part of the civilised society. We must hasten to add that neither has the
Court directed a total prohibition of sand mining in the State river beds and river banks,
nor is that what we intend to do. Sand mining is necessary; but it has to be done within
strictly regulated limits defined for the purpose of sustaining development which is the
ultimate objective.

12. With the aforesaid objective in mind, after hearing all objectors, we dispose
of the aforesaid Original Petitions and Contempt of Court Cases with the following
directions, which shall be without prejudice to the right of the State Government to
bring forward a comprehensive legislation on the subject and which shall operate
during the interregnum till such legislation comes into force:

i) All the directions issued by the government dated 5.1.1998, 20.5.2001 and the interim
orders of this Court, including the one dated 21.6.2001 regarding sand mining shall be
strictly followed by all the authorities in respect of all the rivers in Kerala. No sand
mining shall be allowed, unless the conditions incorporated therein are followed,
including the obtaining of report from the experts.

ii) The collection of sand within 1 km of bridges and irrigation projects is prohibited.
Illegally mined sand shall be directed to be put back in the river.

iii) Export Committee as referred to in the G.O. dated 5.1.1998 shall be the Centre for Earth
Science Studies (CESS) or Centre for Water Resources Development and Management
(CWRDM). District Collector shall obtain the report of CESS or CWRDM and if there
is no report received, no sand mining shall be allowed unless and until such report is
obtained and all steps indicated therein are taken. While fixing the Kadavus, the
District Collector shall not allow any Kadavus, where the conditions laid down cannot
be complied with.

iv) Constructions made within rivers (as pointed out by the experts), reported to be
causing adverse effect on river ecology, shall be demolished immediately by the local
authority, and the expenses incurred on this account shall be recovered from the
concerned persons.

v) Karmasamithis shall be constituted in all Panchayats and made functional before
allowing and mining they shall point out any violations of conditions. All reports
submitted by Karmasamithi members and the public shall be considered immediately
by the District Collector, or police officials and other authorities and immediate action
taken to prevent such violation the Secretary, Local Self Government, for the family
for paying the arrears in instalments. The Secretary, Local Self Government, shall after
considering each case make appropriate directions with regard to the instalment in
which the arrears have to be paid off. As long as there is no default in payment of such
instalments, the Secretary may permit such Panchayats to extract sand as otherwise
allowed under this order.

vii) The River Management Fund shall be utilised for protecting the river and the river banks.

viii) River sand shall be allowed to be taken outside the State only if there is excess quantity
available, as decided by the State Government.

ix) Steps shall be taken to demarcate the river boundaries and to protect them.

x) The State Government shall consider the constitution of a River Protection Force and
a State River Management Authority for protecting all the rivers in the State from
excessive sand mining.

xi) On behalf of some of the Panchayats it is contended that they had no opportunity for
dealing with the expert committee report and some of them are aggrieved by that. If
any Panchayat has any objection to the report of CESS, which is already on record,
such panchayat may forward its objections to the State Government through the
concerned District Collector. On receipt of such objections, the State Government
shall refer the objections to the Science, Technology and Environment Department
for examination by an appropriately constituted expert body and implement the
remedial measures as may be suggested by such expert body.

xii) The State Government shall also consider the feasibility of alternatives to river sand
in developmental activities. The petitioner in C.M.P. No. 48244 of 2001 in O.P. No. 16272
of 2000, a private company, has proposed dredging of offshore waters to collect sand
from the sea and suitably refining it for use in constructional activities. The feasibility
of its proposal shall be studied by the State Government by referring it to an appropriate
expert body. The petitioner in CMP No. 48244 of 2001 has expressed its willingness
to defray the expenditure likely to be incurred in connection with such feasibility study.
The State Government may call upon the petitioner in C.M.P. No. 48244 of 2001 to
deposit such amounts as are necessary for defraying the expenditure for carrying out
the feasibility study and, if the feasibility study shows that the proposal is feasible,
take necessary steps to encourage alternative excavation of sand as may be suggested.

It shall be the duty of the State Government through its administrative and police
officers at sufficiently high levels to ensure that these directions are strictly complied
with and there is no cause for grievance that sand mining is clandestinely and illegally
carried out despite these directions.